R v Torrens - [2006] QCA 24

SUPREME COURT OF QUEENSLAND

CITATION:

R v Torrens [2006] QCA 24

PARTIES:

R
v
TORRENS, Richard James
(applicant/appellant)

FILE NO/S:

CA No 291 of 2005
DC No 2657 of 2005
DC No 3048 of 2005
DC No 3047 of 2005
DC No 443 of 2004
DC No 2360 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

10 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2006

JUDGES:

McMurdo P, Jerrard JA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the orders proposed

ORDERS:

1. Application for leave to appeal against sentence granted

2. Appeal allowed only to the extent of deleting the recommendation for post-prison community-based release and instead recommending that appellant be eligible for post-prison community-based release on 31 July 2007

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY - where appellant pleaded guilty to one count of robbery, two counts of robbery with personal violence, one count of wilful damage and two summary offences of obstructing and assaulting a police officer – where offences committed during operational period of a suspended sentence imposed for previous robbery offences – where appellant ordered to serve balance of suspended sentence (18 months) and sentenced to an effective term of four years' imprisonment to be served cumulatively with activated suspended sentence – where appellant ordered to be considered eligible for post-prison community-based release after serving 30 months – where 270 days in pre-sentence custody was declared time already served – where appellant claims that sentence was manifestly excessive – where appellant is ineligible to apply for parole in respect of the 18 months' imprisonment because period of imprisonment must be more than two years under s 134(1) Corrective Services Act 2000 (Qld) – where appellant also ineligible to apply for parole under s 135(2)(e) Corrective Services Act after serving half of the four-year term because of sentencing judge's order in accordance with s 157 Penalties and Sentences Act 1992 (Qld) that appellant serve 30 months of term – whether judge intended deliberately to delay appellant's eligibility for parole until after statutory halfway point of his sentence

Corrective Services Act 2000 (Qld), s 134, s 135

Penalties and Sentences Act 1992 (Qld), s 157, s 161

R v Griinke [1992] 1 Qd R 196, cited
R v Hundric [2005] QCA 324; CA No 152 of 2005, 30 August 2005, cited

R v Russell [2005] QCA 392; CA No 194 of 2005, 24 October 2005, cited

COUNSEL:

J D Briggs for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant pleaded guilty on 28 October 2005 to one count of robbery and two counts of robbery in company with personal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Torrens

Details

AGLC: R v Torrens [2006] QCA 24
Case: [2006] QCA 24
Decision Date: 10 February 2006

CaseChat Overview and Summary

In the matter of R v Torrens, the appellant challenged the sentence imposed by the District Court, which was an effective term of four years' imprisonment, to be served cumulatively with an activated suspended sentence of 18 months. The appellant had pleaded guilty to multiple counts of robbery, wilful damage, and obstructing and assaulting a police officer. The District Court ordered the appellant to be eligible for post-prison community-based release after serving 30 months, which the appellant argued was an inappropriate recommendation, rendering his sentence manifestly excessive. The legal issue before the court was whether the judge had deliberately intended to delay the appellant's eligibility for parole until after the statutory halfway point of his sentence.

The court examined the statutory provisions and the sentencing judge's orders to determine whether the recommendation for post-prison community-based release was appropriate. The court concluded that the recommendation was inappropriate because it effectively delayed the appellant's eligibility for parole until after the statutory halfway point of his sentence, which was not the intention of the judge. The court held that the judge's intention was to ensure that the appellant served a significant period of imprisonment before being eligible for parole, but not to delay the appellant's eligibility for parole until after the statutory halfway point of his sentence.

Accordingly, the court allowed the appeal only to the extent of deleting the recommendation for post-prison community-based release and instead recommended that the appellant be eligible for post-prison community-based release on 31 July 2007. The court granted leave to appeal against the sentence and made orders accordingly.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed only to the extent of deleting the recommendation for post-prison community-based release and instead recommending that appellant be eligible for post-prison community-based release on 31 July 2007

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Torrens [2006] QCA 24
PARTIES:	R v TORRENS, Richard James (applicant/appellant)
FILE NO/S:	CA No 291 of 2005 DC No 2657 of 2005 DC No 3048 of 2005 DC No 3047 of 2005 DC No 443 of 2004 DC No 2360 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	10 February 2006
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2006
JUDGES:	McMurdo P, Jerrard JA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the orders proposed
ORDERS:	1. Application for leave to appeal against sentence granted 2. Appeal allowed only to the extent of deleting the recommendation for post-prison community-based release and instead recommending that appellant be eligible for post-prison community-based release on 31 July 2007
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY - where appellant pleaded guilty to one count of robbery, two counts of robbery with personal violence, one count of wilful damage and two summary offences of obstructing and assaulting a police officer – where offences committed during operational period of a suspended sentence imposed for previous robbery offences – where appellant ordered to serve balance of suspended sentence (18 months) and sentenced to an effective term of four years' imprisonment to be served cumulatively with activated suspended sentence – where appellant ordered to be considered eligible for post-prison community-based release after serving 30 months – where 270 days in pre-sentence custody was declared time already served – where appellant claims that sentence was manifestly excessive – where appellant is ineligible to apply for parole in respect of the 18 months' imprisonment because period of imprisonment must be more than two years under s 134(1) Corrective Services Act 2000 (Qld) – where appellant also ineligible to apply for parole under s 135(2)(e) Corrective Services Act after serving half of the four-year term because of sentencing judge's order in accordance with s 157 Penalties and Sentences Act 1992 (Qld) that appellant serve 30 months of term – whether judge intended deliberately to delay appellant's eligibility for parole until after statutory halfway point of his sentence Corrective Services Act 2000 (Qld), s 134, s 135 Penalties and Sentences Act 1992 (Qld), s 157, s 161 R v Griinke [1992] 1 Qd R 196, cited R v Hundric [2005] QCA 324; CA No 152 of 2005, 30 August 2005, cited R v Russell [2005] QCA 392; CA No 194 of 2005, 24 October 2005, cited
COUNSEL:	J D Briggs for the applicant/appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent